Ed
Rosenthal Faces the Music in Key Med Marijuana Case; He Charges Millions Stolen
by High Times Trust "Could Have Changed History"; Bush and Blair
Named for Peace Prize; More on Breasts and Martinis

by
Alexander Cockburn

Dissident Voice

May
10, 2003

Come
June 4 Ed Rosenthal will be back in US District Court in San Francisco, to hear
what sentence Judge Charles Breyer has decided to impose. Earlier this year a
California jury found him guilty of cultivating marijuana, of maintaining a
place to cultivate marijuana and of conspiring with others to cultivate
marijuana. He's in his early 50s now and he's looking at the possibility of
hauled off to prison for the rest of his life.

Let's
all hope that it won't come to that, and that Breyer will stay his sentence,
pending appeals that may end up in the US Supreme Court.

The
feds went after Rosenthal because he's a high profile advocate of legalized
marijuana, famous for his books and articles, not least in High Times. The
charges seemed surreal. Under the terms of California's Compassionate Use Act
of 1996, okaying the cultivation and use of medical marijuana the City of
Oakland designated Rosenthal the legal supplier of marijuana starts to those in
chronic pain.

Back
then, on the eve of the trial, Rosenthal told me, "This is a tipping point
case. If they put me behind bars they are going to start closing these clubs.
The clubs will have no excuse. Everyone will have to plead out. It's really
important that I win this case."

He
will win in the end, but Rosenthal lost that round in US District court. His
trial was a grim farce. Breyer (brother of US Supreme court justice Steven)
overruled every effort of Rosenthal's lawyers to introduce the fact that the
man in the dock had been working under the aegis of the city of Oakland,
abiding by the provisions of a state law approved by the voters of California.

Thus
kept in the dark, and with the ground cut from under Rosenthal's defense, the
jury found him guilty. Then the jury stepped out of the jury box and for the
first time learned the actual circumstances and background of the charges.
Within days six of them mustered in front of the US courthouse to apologize
publicly to Rosenthal, and to proclaim their shame and indignation that they
had been dragooned into this parody of justice.

I
was there and it was truly an amazing occasion. Terence Hallinan, the District
Attorney of San Francisco, SF supervisors Tommy Ammiano and Matt Gonzalez, and
the chairman of the city's board of supervisors all stepped to the microphone
to applaud the penitent jurors for their stand, to denounce the conviction.
Board Gonzalez invoked the long tradition of jury nullification which, had this
jury known about it, would have enabled them to set aside Breyer's
instructions, consult their consciences and found Rosenthal innocent.

The
next round in the case concerned precisely this issue of whether a juror can
discount a judge's instruction. In the wake of the verdict two jurors, Marney
Craig and Pamela Klarkowski, disclosed to Rosenthal's lawyers that during the
trial, outside the jury room, they had discussed, at least twice, the issue of
disobeying Breyer's instruction. Craig said she had phoned an attorney friend
who had told her forcefully that she had to follow Breyer's instructions and
would be get into big trouble if she used her own judgement. Craig had then
discussed this call with Klarkowski.

Rosenthal's
lawyers went before Breyer again, arguing for a mistrial on the grounds of
malfeasance by the two jurors. Though Craig took the Fifth, the facts weren't
disputed. Breyer hasn't issued a ruling yet. On the face of it, you'd think
it's open and shut. Aside from Breyer's outrageous restrictions, did Rosenthal
get a fair trial if two jurors were secretly sitting on a piece of bad legal
advice, to the effect that if they stepped outside the narrow lines drawn by
Breyer they'd face serious sanctions?

But
Breyer doesn't want to order a new trial, one in which the chances of a jury
aware of the background of the case and also of the possibility of
nullification would be far higher. If he rejects the defense's motion for
retrial, it will be one more grounds for appeal, along with the basic issue of
the contradiction between state and federal laws, already being considered by
the Ninth Circuit Court of Appeals.

Last
September, the DEA raided a marijuana club in Santa Cruz, arousing enormous
rage, not least among Santa Cruz's city council, which has now filed suit in
federal court demanding damages as well as an injunction to prevent the

DEA
from infringing on state affairs again. In February, the feds launched a
hundred raids across the US, seizing glass bongs and kindred materials. They
made more than 50 arrests, even though they found no drugs, and even though, in
California and other states, possession of marijuana pipes has been
decriminalized.

So,
just as Rosenthal predicted to me, the feds took the guilty verdict as a green
light. Across California people acting within the terms of the 1996 California
statute have every reason to fear that DEA will come crashing through the door
and that federal judges like Breyer will back up their right to do so. Down in
Los Angeles people involved in medical marijuana activities have plead guilty,
not prepared to risk the possible twenty year sentence that Rosenthal is
staring at.

The
only silver lining thus far, aside from the edifying stance of principle taken
by Ed Rosenthal is that the issue of jury discretion, or jury nullification is
on the front burner again. In the days after Rosenthal's conviction about half
Rosenthal's jurors began to proclaim publicly their disillusion with the
justice system as disposed by Judge Breyer, you could hear intense seminars on
jury nullification on at least one of San Francisco's biggest AM stations.

And
yes, this is a Republican administration rhetorically committed to states rights.
Bush himself made a campaign issue of it, ladling out a plateful of pledges on
states' rights alongside equally vociferous promises that he wouldn't be in the
nation-building business. But don't conclude from this that Clinton Time was
better. So far as marijuana was concerned it was awful.

Ed
Rosenthal, incidentally, is a man of tireless energy. Amid his tribulations
he's found time to sue the trust which controls the money from the very
successful High Times magazine, founded by Tom Forcade, who died, allegedly a
suicide, though under slightly odd circumstances back in the 70s. Rosenthal has
now won standing in Maricopa County, Arizona, as a plaintiff who can to get
discovery to prove he has standing.

That
went by you, didn't it. Rosenthal, a 20-year outside staff contributor to High
Times charges that those controlling the trust set up by Forcade have abused
the trust's original mandate and filched millions.

"It's
more than the case of a writer being screwed," Rosenthal tells me.
"If it was just me, you could say, too bad that justice was not done', and
leave it at that. But these days could have given NORML and the Alternative
Press Syndicate between $20 and $40 million. Think of what difference that
would have made. When NORML had a budget of $100,000 to $200,00 instead they
could have had a million a year.

"Let's
say someone stole money from Enron, from Lay, who would care. This is
different, removing money from a political movement. Millions were affected.
The whole environment could have been changed."

Nobel Peace Prize? You've Guessed It

It
was bound to happen and it did. A Norwegian parliamentarian has nominated Bush
and Blair for the Nobel Peace Prize on Thursday, praising them for winning the
war in Iraq. Simonsen's proposal will have to wait for the 2004 award because
the deadline for nominations for 2003 passed on February 1. With nominees
including the Pope and Bono. Better the Pope than Bono, though in general the
viler the candidate the greater the disrepute into which the whole awful Nobel
process is plunged.

About Those Breasts and Martinis

CounterPunchers
take their cocktail lore seriously. A few days ago I wrote a little item
about a line borrowed without any acknowledgement of same by Christopher
Hitchens. The line was about how many gin martinis one should have at a single
session, the comparison being with women's breasts. Reviewing the source
material turned up in a google search I said it seemed likely that the line
came from the great San Francisco columnist Herb Caen, "Martinis are like
breasts, one isn't enough, and three is too many".

In
came a prompt endorsement from D.J. Harris "RE: Hitchens, martinis, and
breasts. Your intuition that the quote is from Herb Caen is right on the mark.
I am absolutely certain it appeared in a Caen column in the Chronicle some time
in the mid 60s. I distinctly recall reading that line and commenting about it
with friends of mine. I was a graduate student at Berkeley in those days and an
avid reader of Caen because of the brilliant, dry wit (not the juicy tidbits of
gossip) that filled his column. In my circle, Caen and another Chron columnist
(anti-war, anti-establishment Art Hoppe) were a regular treat." Not to
forget Charlie McCabe's Fearless Spectator column.

Thanks Mr Harris, Though Don't Forget

Half
a dozen readers promptly reminded me that line appears in the 1974 film The
Parallax View, directed by the late Alan Pakula. Robert Atkinson provided the
context. "The scene: comely small-town bartender offers a clean-and-sober
Warren Beatty a martini, using the aforementioned line as an enticement. He
wisely orders a milk."

Thus
far, the earliest point of excavation is provided by Don Neighbors, of Orange
Park, Florida, who writes thus: "I first heard the expression in 1955, and
it was my impression, from all the eye-rolling, etc., that it had been around
for a long, long time then."

Frank
Armstrong offered refinement: "The version of that joke that I heard, well
over ten years ago, did not employ the breast analogy. It goes like this: 'As
to martinis: One is not enough, two is too many and three is not enough...' It
is a dry joke, made funnier if you hear it while on your fourth martini."

A
scholarly friend of CounterPunch suggested that "to me, more than two also
suggests mammalian animals, though they have even numbers of teats (CH and
bestiality?) also, many humans are born with a third, displaced nipple on the
chest or on the side -- more of a prob if you are a girl -- genetic glitch
giving rise to phrase 'witch's tit'. Considered not a good thing....(CH and old
fashioned superstitions re minor deformations?)"

Which
takes us to the reminder from another reader that Homer Simpson boasted once of
his third nipple. I'm not steeped in Simpson lore, but I don't see Homer S as a
martini kind of guy.

So
here we are, with the line active back in '55. I emailed Mr Neighbors asking
where he was when he heard it and how old was he, but no answer as yet. Any
further sourcing will be welcomed.

I
must also note a few tetchy emails asking How come our site has time for this
kind of lighthearted stuff, when great issues of war and disaster crave our
undivided attention. Folks, we run about ten stories a day, seven days a week,
most of them addressing the gloomier side of the world picture. But neither
Jeffrey nor I are gloomy guys and we think it behooves radicals to take the
advice of that character at the end of the world's greatest political movie,
The Life of Brian. Albeit crucified at the time he recommends that we look at
the sunny side of life, which of course included martinis.

Alexander Cockburn is the author The
Golden Age is In Us (Verso, 1995) and 5 Days That Shook the World:
Seattle and Beyond (Verso, 2000) with Jeffrey St. Clair. Cockburn and St.
Clair are the editors ofCounterPunch,
the nationís best political newsletter, where this article first appeared.